Citation Nr: 18149975 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-09 192 DATE: November 14, 2018 ORDER Entitlement to an apportionment of the Veteran’s VA disability compensation benefits is denied. FINDING OF FACT The appellant has lived with another person and held herself out openly to the public to be the spouse of such other person, and the evidence fails to establish that the appellant entered this relationship on a good faith basis believing her marriage to the Veteran was terminated or that she and the Veteran reconciled thereafter. CONCLUSION OF LAW The criteria for entitlement to an apportionment of the Veteran’s VA disability compensation benefits have not been met. 38 U.S.C. § 5307 (2012); 38 C.F.R. §§ 3.450, 3.451, 3.458 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the appellant’s request for an apportionment of the Veteran’s VA disability compensation benefits. The appellant, F.C., purports to be the Veteran’s legal spouse. Although the record appears to support the appellant’s contention, the Board nevertheless finds an apportionment is not warranted in this case for the reasons discussed below. This matter was most recently before the Board in June 2017, when it was remanded to ensure compliance with the Board’s prior remand directives. The Board finds the Agency of Original Jurisdiction (AOJ) has now substantially complied with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board directed the AOJ to provide the Veteran notice of the contents of the appellant’s substantive appeal, as well as conduct a search of Oklahoma, Kansas, and Texas public records in efforts to obtain a potential divorce decree regarding the appellant’s marriage to the Veteran. The AOJ sent the Veteran a letter in December 2017, apprising him of the appellant’s contentions regarding her status as his legal spouse and the continuation of her appeal in this regard. The AOJ also conducted a search of the public records in Oklahoma, Kansas, and Texas, as directed. The Oklahoma search did not provide any indication that divorce proceedings were brought to terminate the parties’ marriage. The AOJ was unable to obtain records from Kansas or Texas because those states require fees for records retrieval. In sum, the Board finds the AOJ completed the actions requested by the Board to the extent possible. Review of the claims file reveals that the applicable contested claims procedures have been followed in this case. Both parties were provided notice of all substantive actions of the AOJ and the Board at their last known addresses. The Board acknowledges several correspondences have been returned as undeliverable from both parties during the appeal period; however, the AOJ and the Board have gone to great lengths to ensure both parties have received notice of VA’s actions regarding this appeal. Neither party has diligently apprised VA of their current address. See Jones v. West, 12 Vet. App. 98 (1998) (holding it is an appellant’s duty to keep VA apprised of his or her last known address). The Veteran is the prevailing party in this appeal, so he has not been prejudiced by any deficiency in notice. VA has not received any correspondence from the appellant since she withdrew her hearing request in June 2013. VA has sent her notices at multiple addresses obtained from public records since mail from her last known address was returned undeliverable, but she has failed to respond and has not otherwise inquired as to the status of her appeal. She must bear the responsibility for any deficiency in notice since she has not actively participated in her appeal by keeping VA apprised of her last known address. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds VA has met its due process responsibilities and provided the opportunity for both parties to develop the record to the greatest extent possible. Thus, the Board will move forward with consideration of this appeal. According to VA law, all or part of a veteran’s disability compensation benefits may be apportioned on behalf of the veteran’s spouse if the veteran is not residing with the spouse and not reasonably discharging his or her responsibility for the spouse’s support, otherwise known as general apportionment. 38 U.S.C. § 5307(a)(2); 38 C.F.R. § 3.450(a)(1)(ii). VA regulations also provide for a special apportionment of compensation benefits between the veteran and his or her spouse on the basis of the facts in the individual case where hardship is shown to exist, as long as it does not cause undue hardship to the other persons in interest. 38 C.F.R. § 3.451. Nevertheless, 38 C.F.R. § 3.458 provides that benefits are not apportionable to a veteran’s legal spouse if it has been determined that he or she has lived with another person and held himself or herself out openly to the public to be the spouse of such other person, except where such relationship was entered into in good faith with a reasonable basis (for example trickery on the part of the veteran) for the spouse believing that the marriage to the veteran had been legally terminated. The regulation further instructs that no apportionment will be made to the spouse thereafter unless there has been a reconciliation and later estrangement. Here, the Board finds the evidence establishes the appellant has lived with another person and held herself out openly to the public to be the spouse of such other person. In April 2016, VA obtained records related to the appellant’s application for benefits with the Social Security Administration (SSA). During an April 1991 psycho-social evaluation, the appellant reported she separated from the Veteran in 1983 after the birth of their second daughter. She further reported she began a relationship with another man in 1985 while she was pregnant with her third child. The appellant eventually began cohabitating with this man, and he fathered her fourth child in 1987. During subsequent treatment episodes, the appellant referred to this man as her “common-law” husband. The appellant remained in a relationship with the man for several years, and he appeared with her at an October 1997 SSA hearing. In sum, the Board finds the evidence of record is sufficient to establish the appellant lived with another man and to some extent held him out openly to the public to be her husband. The Board finds the evidence fails to establish the appellant entered into her relationship in good faith with a reasonable basis for believing that her marriage to the Veteran was legally terminated. In fact, every statement the appellant has submitted to support her apportionment claim indicates she knew that she remained legally married to the Veteran since their marriage in 1980. There is also no indication the appellant and the Veteran reconciled after her relationship with another man. The Board acknowledges the appellant submitted a statement in August 2012 that indicates she and the Veteran initially separated in 2001, but the Board finds this statement and other statements by the appellant alluding to reconciliation to be of no probative value in light of her contemporaneous reports regarding their prior separation and her subsequent relationship detailed throughout her SSA records. In sum, the Board finds the appellant’s request for an apportionment is barred by 38 C.F.R. § 3.458(c), even though the record supports her contention that she remains legally married to the Veteran. There is substantial evidence that indicates she lived with another person and held herself out to the public to be the spouse of such other person. There is no indication she entered this relationship in good faith with the belief that her marriage to the Veteran was terminated or that she and the Veteran reconciled thereafter. Accordingly, her appeal of the June 2012 decision must be denied. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel